Roberts Worked Behind the Scenes on Gay Rights Case

Some interesting (and hopeful?) news has surfaced about Supreme Court nominee John Roberts. Roberts worked behind the scenes on Romer v. Evans, a 1996 case that went before the Supreme Court and (6-3) struck down a Colorado initiative that would have allowed employers and landlords to discriminate against gays. The case was one of the first important legal victories for gay rights.

Roberts did not write the legal briefs or argue the case but reviewed filings and prepared oral arguments on behalf of the lawyers working to fight the initiative.

"Roberts' work on behalf of gay activists, whose cause is anathema to many conservatives, appears to illustrate his allegiance to the credo of the legal profession: to zealously represent the interests of the client, whoever it might be."

The three dissenting justices in the case, Scalia, Thomas, and Rehnquist, had written in the dissent, "Coloradans are entitled to be hostile toward homosexual conduct."

Comments

"Coloradans are entitled to be hostile toward homosexual conduct."

An argument can be made that this is not as terrible as it looks at first glance. The dissent ratifies that as an ostensibly free people we actually have a right to our feelings. This is at the center, of the “gay agenda,” that gays really do have a right to their feelings and their desire to express those feelings.

Seen more broadly, this would indicate that I have a right to be hostile toward conduct that limits my rights. I also have the right to be hostile toward any infringement of my rights by those of the extreme right who view any variance from their beliefs as heresy, immorality or insanity. However, I hope that quoted language from the dissent goes on to proscribe any rights, by these right thinking Coloradoans, to physically imperil gays while venting their hostility against gay conduct. Somehow I suspect that it does not.

Posted by: Ed | Aug 4, 2005 10:07:48 AM

Wow, I didn't expect to ever hear any news like this. Although, I do wish he had more direct involvement. Regardless, this guy just doesn't seem to have the experience one might expect for a life long position on the supreme court, nor does he seem unbiased.

Posted by: LostMonkey | Aug 4, 2005 10:21:55 AM

Ed fails to notice that the dissent specifies "homosexual conduct" and not "homosexuals" in general. Even today, conservatives believe that homosexuality is simply a matter of conduct, like choosing whether to cross a street or choosing what toothpaste brand to buy, not a matter fundamental to one's identity. The majority in fact did NOT rule on whether a state can or should regulate certain behaviors. Rather, Romer held that a state may not discriminate against a class of people, in this case, gays and lesbians, without a compelling government purpose. The majority opinion is not about dictating who you can privately like or dislike.

Posted by: John | Aug 4, 2005 3:07:05 PM

John is correct, and even more. What was at stake in Romer v. Evans wasn't simply discrimination, but a very fundamental and preemptive type of discrimination -- namely, whether the majority of citizens in a state can preclude an entire class of other citizens from seeking their own rights, benefits, whatever via the political process.

The dissent's view that "Coloradans are entitled to be hostile toward homosexual conduct" was used by the minority as a building block for concluding that a majority can basically short-circuit a despised minority's attempt to resort to the political process in the first place. As John noted, this wasn't about private views; indeed, it was about the very right to participate in politics on a level playing field.

I know some principled conservatives who felt the minority was being kind of outrageous and excessive, so I wouldn't read too much into Roberts' maybe being one of them.